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Men’s right to divorce

September 26, 2012


ON Aug 29, I wrote an article discussing a case in which an appeals court in Virginia decided that a Pakistani American woman had not fulfilled all the requirements of divorce because her husband’s oral pronunciation of divorce had not been registered with the local union council/district registration office.

The woman’s first husband had divorced her verbally and sent her back home to her parents. She believed herself divorced. When she remarried she did not disclose the earlier marriage to her new husband and they moved to the United States.

A few years later, she and her second husband also chose to divorce. According to the court record, while on a visit to Pakistan the second husband found out about the previous divorce. He now alleged to the court in Virginia that since his wife had never registered the divorce, she was still married to her first husband under Pakistani law.

He insisted that oral pronouncements of talaq or divorce had to be registered with the local union council or district registration office within 90 days. To prove his case, he provided the text of the Muslim Family Law Ordinance, 1961.

The court in Virginia believed the man and his assertions regarding Pakistani law and he was awarded an immediate annulment. On this basis, he managed to sidestep divorce proceedings, thus avoiding the division of marital property with his wife or any support etc that may have been due to her under US law.

Pakistani law, the Virginia court stated, based on a literal reading of the statute provided to them, was clear, saying in Section 7 that “Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife”. No notice means no divorce.

After the publication of the article I received many letters regarding the issue of whether or not a notice to the council is required for the endorsement of an oral pronunciation of talaq in Pakistan. In several cases, wives were unsure of whether the lack of registration was in itself a revocation of the oral pronunciation; in other cases women and their families wondered how to effectively register a divorce when the husband himself had failed to do so.

It seems the issue of notice as a requirement fell squarely, as it were, on the fault line between what is required for the state to adjudicate on marital disputes and the bare minimum required for validating religious pronouncements in civil courts.

Unsurprisingly, much of the legal confusion dates back to the Objectives Resolution that, appended to the constitution of Pakistan, directs explicit conformity with the doctrine of the Quran and Sunnah without explaining the consequences this would have in cases where form and intent were not easily aligned.

In this case, the court in Virginia was simply wrong. According to Dr Parvez Hassan, a legal scholar and practitioner who has worked on the issue for several years, the issue of whether notice of an oral pronouncement of divorce further requires registration with local authorities is one that has long confounded as to the effects of the registration requirements, their intent and implication on the rights otherwise provided to men.

The conflict centres on those who argue that the registration requirement can itself be considered a violation of Islam because it adds an additional requirement (registration) that is not otherwise necessary to the act of repudiating a marriage. Others insist that the issue be judged on the basis of the ‘intent’ of the registration requirement which would be to deter the treatment of divorce as a light matter, maintaining the sanctity and seriousness of the marital relationship.

The second position was upheld by the Pakistan Supreme Court in 1963 Nawaz Gardezi v Yousuf Ali where Section 7 and the registration requirement of the Muslim Family Law Ordinance of 1961 was found to enact a “machinery of conciliation whereby a husband wishing to divorce his wife unilaterally may be enabled to think better of it, if the mediation of others can resolve the differences between the spouses”.

Later courts changed their minds, and the intention of the registration provision has since been brought into question by both the Shariat Appellate Bench of the Pakistan Supreme Court and the Federal Shariat Court. The latter pronounced in Allah Rakha v Federation of Pakistan PLD 2000 that “subsection (3) and subsection (5) of Section 7 of the Muslim Family Laws Ordinance, 1961, are repugnant to the injunctions of Islam”.

While that case is currently pending appeal by the Shariat Bench of the Pakistan Supreme Court, the latter has followed the same track, saying in Zahida Shaheen v The State (1994) that “failure to send a notice to chairman of the local council does not render the divorce ineffective”.

As it exists today, then, failure to register a verbal divorce with the council does not invalidate the act. The confusion over the notice, however, reveals a deep conflict between the intent of the law and the acceptability of its sources.

Most religious clerics in Pakistan would agree that within Islam’s legal and ethical constructions divorce is a matter to be taken seriously and reconciliation between estranged spouses is a worthy aim. Despite these assertions, though, their insistence against the validity of the registration requirement of the Muslim Family Law Ordinance, 1961, and its attempt to position the state as a buffer between the couple, stubbornly prioritise form over function, protecting the marriage and family by making divorce more than an act of three vocalised sentences.

The right of a man to divorce without any checks is thus deemed more important than the state or society’s interest in ensuring the longevity and stability of marriage.

The writer is an attorney teaching constitutional law and political philosophy.